Prospect Land & Improvement Co. v. Downey

Appellate Division of the Supreme Court of New York

Prospect Land & Improvement Co. v. Downey

164 A.D. 891, 148 N.Y.S. 1139

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 1914

StatusPublished

This text of 164 A.D. 891 (Prospect Land & Improvement Co. v. Downey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Prospect Land & Improvement Co. v. Downey, 164 A.D. 891, 148 N.Y.S. 1139 (N.Y. Ct. App. 1914).

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Opinion

Per Curiam:

We think that the evidence in this case establishes mis. conduct on the part of the defendant, the president of this company, in that he sold property belonging to plaintiff, received the proceeds thereof to his own use, and has failed ever to account for the same. Although his conduct may have been negligent rather than fraudulent, we think, particularly in view of the stipulation made at the close of plaintiff’s case, that the matter of accounting should be sent to a referee, that so much of the judgment as is appealed from by defendant should be affirmed, and that the fourth finding of fact should be amended by adding thereto the words, “and has wilfully neglected to account for or pay over the same.” With regard to defendant’s claim for compensation while president of the company, we think that the evidence fails to establish either an express agreement that he should be paid therefor, or that such services were outside of the scope of his official duties, either as president or director, and that the judgment should be modified by striking out so much thereof as refers it to the referee to determine “the amount of compensation the defendant is entitled to recover for the services rendered to the plaintiff.” The fifth finding of fact should be amended by striking therefrom the words “ which services were outside the scope of his official duties either as president or director, and for which services defendant is entitled to recover a reasonable compensation.” As thus modified, the interlocutory judgment appealed from should be affirmed, with costs to the plaintiff. Jenks, P. J.,Burr, Carr [892]*892and Rich, JJ., concurred; Putnam, J., taking no part. Interlocutory judgment modified in accordance with opinion, and as so modified affirmed, with costs to plaintiff.

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Per Curiam:

We think that the evidence in this case establishes mis. conduct on the part of the defendant, the president of this company, in that he sold property belonging to plaintiff, received the proceeds thereof to his own use, and has failed ever to account for the same. Although his conduct may have been negligent rather than fraudulent, we think, particularly in view of the stipulation made at the close of plaintiff’s case, that the matter of accounting should be sent to a referee, that so much of the judgment as is appealed from by defendant should be affirmed, and that the fourth finding of fact should be amended by adding thereto the words, “and has wilfully neglected to account for or pay over the same.” With regard to defendant’s claim for compensation while president of the company, we think that the evidence fails to establish either an express agreement that he should be paid therefor, or that such services were outside of the scope of his official duties, either as president or director, and that the judgment should be modified by striking out so much thereof as refers it to the referee to determine “the amount of compensation the defendant is entitled to recover for the services rendered to the plaintiff.” The fifth finding of fact should be amended by striking therefrom the words “ which services were outside the scope of his official duties either as president or director, and for which services defendant is entitled to recover a reasonable compensation.” As thus modified, the interlocutory judgment appealed from should be affirmed, with costs to the plaintiff. Jenks, P. J.,Burr, Carr [892]*892and Rich, JJ., concurred; Putnam, J., taking no part. Interlocutory judgment modified in accordance with opinion, and as so modified affirmed, with costs to plaintiff.

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Bluebook (online)

164 A.D. 891, 148 N.Y.S. 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prospect-land-improvement-co-v-downey-nyappdiv-1914.